Amy Weirich Ousting a Rare Recent Win for Reform Prosecutor Movement

August 11, 2022

Most people do not care about their local elected prosecutor. If a voter knows what a district attorney is, it’s quite likely because of Law & Order and its spinoffs.

On the other hand, just a handful of nonfictional DAs do become household names. Shelby County (Memphis) District Attorney Amy Weirich, who lost her bid for reelection on August 5, is one of them. But not for positive reasons.

After Pamela Moses, a Black Lives Matter activist who expressed plans to run for mayor, tried to register to vote while on probation because she believed she was legally eligible, Weirich prosecuted her. Weirich accused Moses of a devious scheme to dupe correctional officials, and in January 2022 obtained for her a six-year prison sentence. The case sparked national and even international outrage.

Wilder yet, the case was thrown out in April after Moses successfully filed a motion for a new trial. It turned out that someone in Weirich’s office had “inadvertently” failed to hand over potentially exculpatory evidence to the defense. Weirich pointed the finger at the Tennessee Department of Corrections in an attempt to exonerate herself.

It wasn’t just the Moses case. In 2009, when prosecuting the headlines-making case of Noura Jackson, a young woman accused of murdering her mother, Weirich screamed at Jackson: “Just tell us where you were! That’s all we are asking, Noura!” It is virtually certain that Weirich knew her prodding was a violation of Jackson’s rights under the Fifth Amendment, because Jackson’s answering would run contrary to her right against self-incrimination; every law student learns the relevant cases. In other murder cases, DA Weirich coached witnesses to lie and hid potentially exculpatory evidence.

Weirich treated her office, and arguably her city, like her personal fiefdoms. The evidence from several of her most high-profile cases can only reasonably point to this conclusion.

Weirich has nonetheless been a mainstay at national prosecutor organizations. She is currently on the board of directors of the American Prosecutor Association, and she was elected by her peers as Vice President of the National District Attorneys Association in 2016. The Prosecutors’ Center of Excellence, another national nonprofit, had her speak on a panel advising fellow prosecutors on “community justice” during the pandemic.

Mulroy’s victory suggests that this avenue for change, coexisting as it must with campaigns for more radical reinvention, is not yet dead.

Weirich was opposed in her reelection campaign—and beaten 56-44 percent—by University of Memphis law professor Steve Mulroy, who ran on promises to curb incarceration, establish independent investigations of police shootings, and promote restorative justice.

Mulroy arrives at a difficult time for the “progressive” prosecutor movement. On the left, after the police murder of George Floyd, more activists than ever before demand action to defund or abolish the existing justice system, rather than seeking to transform it from within. Numerous current and former public defenders have latterly described “progressive” and “prosecutor” as contradictory terms—a worthwhile argument and a tenable position, which may also have deflated electoral enthusiasm for reform prosecutors.

On the right, meanwhile, distortions of crime figures have been used to build momentum for a backlash that has recently seen many reformist prosecutors, some of whom have refused to prosecute “crimes” like drug possession and sex work, thrown out of office and replaced with carceral alternatives.

Reflecting these twin pressures, Mulroy was accused by opponents of supporting “defund the police” on the campaign trail; in fact, his platform includes more law enforcement hires along with implicit bias training.

At the same time, Mulroy’s victory over Weirich complicates the narrative from major newspapers and legacy magazines that the wave of pro-decarceration prosecutors is over—a stance that became almost viral this summer after the recall of San Francisco DA Chesa Boudin earlier this year.

Mulroy campaigned on positions very similar to bolder reform candidates across the country. But he did so in a more conservative jurisdiction—and, in Tennessee, a much more conservative state—than most. And he won, which suggests that this avenue for change, coexisting as it must with campaigns for more radical reinvention, is not yet dead.

Reformers will celebrate, but there are reasons to be cautious. Since the beginning of the movement to transform local prosecutors’ offices, change has most reliably occurred at the intersection of an incumbent who is both dramatically carceral and unethical, and plausible challenger who is predominantly defined in opposition to that incumbent.

Weirich’s high-profile misdeeds provided a perfect opportunity that won’t always be replicated. There are other caveats, too.

In the first cycle of the modern reform wave, from 2015, relatively unknown, moderately reformist candidate Scott Colom trounced Mississippi-based DA Forrest Allgood, who was both extremely conservative and whose prosecutorial ethics record was about as stained as Weirich’s. Angela Corey, the former DA in Jacksonville, Florida, was a prosecutor so egregiously harsh that the Nation magazine threw her on the August 2016 cover, asking whether she was the “most hated” prosecutor in America. Corey lost her primary that year to Melissa Nelson, a moderate reformer.

Weirich’s high-profile misdeeds, in other words, provided a perfect opportunity that won’t always be replicated. It is somewhat likely that Mulroy won because he is not Amy Weirich—not because he is potentially bold enough to substantially cut incarceration rates.

There are other caveats, too. As one high-level attorney in reformist Philadelphia DA Larry Krasner’s office said after Mulroy’s victory, Weirich’s old deputies will almost certainly obstruct reforms because they knew what they were signing up for when opting to work for a DA like her. Firing as many of them as possible is a virtual necessity for Mulroy, but that takes guts.

The other issue is that Tennessee is one of the most conservative states in the country, which is reflected in its criminal code. In most cases, there is wiggle-room for prosecutors in any state to reduce charges and seek less harsh sentences. However, conservative legislatures have a tendency to make almost all crimes felonies, even those commonly seen as low-level at most.

Growing a single cannabis plant, for example, is a felony carrying one-to-six years in prison in Tennessee. A Tennessee DA may opt to either not charge the person who grew it, or to charge it as possession (a misdemeanor). But prosecutors in the South particularly, as recent events in Florida show, face the constant threat of retaliation from conservative legislators or judges if they choose to ignore laws or interpret them leniently.

Mulroy will only retain his power to effect change if he navigates these threats. After a rare win for a movement in recent retreat, his progress will be scrutinized far beyond his jurisdiction.

 


 

Photograph of Memphis by Thomas R Machnitzki via Wikimedia Commons/Creative Commons 3.0

Rory Fleming

Rory is a writer and licensed attorney. Previously, he ran Foglight Strategies, a campaign research services firm for forward-thinking prosecutors, and worked for the Law Enforcement Action Partnership, Harvard Law School Fair Punishment Project and the National Network for Safe Communications at the John Jay College of Criminal Justice. He lives in Philadelphia.

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